Karnataka High Court
Sri Bhovi Venkatesh S/O Basavaraja B vs State Of Karnataka on 9 November, 2023
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NC: 2023:KHC-D:13088
CRL.P No. 102473 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 9TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE S.RACHAIAH
CRIMINAL PETITION NO. 102473 OF 2023
BETWEEN:
SRI BHOOVI VENKATESH S/O BASAVARAJA B
AGE: 22 YEARS, OCC: DRIVER,
R/O: AGASANURU VILLAGE, TAL: SIRUGUPPA,
DIST: BALLARI-583121.
...PETITIONER
(BY SRI. SRINAND A PACHHAPURE, ADVOCATE)
AND:
1. STATE OF KARNATAKA
THROUGH TEKKALAKOTE POLICE STATION,
NOW REP. BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARANTAKA,
DHARWAD, BENCH AT DHARWAD-580011.
2. SRI. HERAKALLU VIRESH S/O MUKAPPA
AGE: 40 YEARS, OCC: LABOURER,
R/O: WARD NO. 2, HERAKALLU VILLAGE,
TAL: SIRUGUPPA, DIST: BALLARI-583121.
...RESPONDENTS
Digitally
signed by
VN
VN BADIGER
BADIGER Date: (BY SRI. PRAVEENA Y.DEVAREDDIYAVARA, HCGP FOR R1;
2023.11.15
11:04:53
+0530
R2-NOTICE SERVED)
THIS CRIMINAL PETITION IS FILED U/SEC. 439 OF CR.P.C.
SEEKING TO GRANT REGULAR BAIL TO THE
PETITIONER/ACCUSED NO.1 IN SPECIAL CASE NO.366/2023
PENDING ON THE FILE OF ADDL. DISTRICT AND SESSIONS
JUDGE FTSC-I (RAPE AND POCSO CASES), BALLARI (CRIME
NO.95/2022 REGISTERED FOR THE ALEGED OFFENCES P/U/S
363, 366 AND 376(2)(n) OF IPC AND SEC. 4, 5(j), 5(I) AND 6 OF
POCSO ACT, BY THE RESPONDENT TEKKALKOTE POLICE
STATION, PENDING ON THE FILE OF, IN THE INTEREST OF
JUSTICE.
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NC: 2023:KHC-D:13088
CRL.P No. 102473 of 2023
THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
1. Heard Shri.Srinand A Pachhapure, learned counsel for the petitioner and Shri Praveen Y Devareddiyavar, learned High Court Government Pleader for the respondent / State.
2. The petitioner is before this Court seeking regular bail in Spl.Case.No.366/2023, for the offences punishable under Sections 363, 366 and 376(2)(n) of IPC and Section 4, 5(j), 5(I) and 6 of POCSO Act, pending on the file of Addl. District and Sessions Judge, FTSC-I (Rape and POCSO cases), Ballari.
3. It is the case of the prosecution that the father of victim has lodged the complaint about missing of his daughter on 17.12.2022. After registration of the complaint about missing of child, the respondent police have conducted investigation. During the investigation, the following facts have been unfolded that the victim and the -3- NC: 2023:KHC-D:13088 CRL.P No. 102473 of 2023 petitioner were loving with each other and decided to marry with each other. The petitioner proposed for marriage on several occasion, but she was refused for one or the other pretext. However, gradually she developed intimacy with petitioner and both have eloped to Bombay by train. Both have married and started living in a rented house at Shivaji Nagar, Bombay. As per the averments of the charge sheet, both the petitioners and the victim stayed till 29.2.2023 at Bombay and they were living as husband and wife. It is further stated that, she is pregnant of five months. After securing the victim, the jurisdictional police have registered a case in Crime No.95/2022 for the offences stated supra.
4. It is the submission of learned counsel for the petitioner that the petitioner is innocent of the alleged offences and he has been falsely implicated in this case. The victim after her SSLC, she was doing coolie work and they used to meet each other. Whenever the petitioner asked about her age, she use to say that she has -4- NC: 2023:KHC-D:13088 CRL.P No. 102473 of 2023 completed 18 years and also willing to marry him. However, due to difference of opinion between the family members, they were forced to leave the house and stayed at Bombay for four months. During the said period, the petitioner married the victim, as per the document, the age of victim was 17 years. It is further submitted that since she has completed 17 years and it is stated that the petitioner married her, Section 375 of IPC and exception 2 thereof made applicable and the alleged rape and also the offence under the POCSO Act not applicable on the facts and circumstances of the case.
5. It is further submitted that the petitioner is permanent resident of Agasanuru village, Siruguppa Taluk, Ballari District and he was working as a driver and he is aged about 23 years. He is earning member of the family and he has to lookafter to the family members and he will abide the conditions imposed by this Court in the event of his release on bail. Making such submission, the learned counsel for the petitioner prays to allow the petition. -5-
NC: 2023:KHC-D:13088 CRL.P No. 102473 of 2023
6. Per contra, learned HCGP vehemently opposed the bail petition by filing the statement of objections and submitted that the offence against the victim who is aged about 17 years is a minor has to be viewed very seriously. She was abducted and forced to accompany the petitioner to Mumbai and stayed there for almost 4 years without informing the family members of the victim and during the said period, he has committed sexual intercourse with her as a result, she became pregnant. Thereafter, she was secured by the Investigating Officer and case has been registered. Since it is the offence against the minor, the petitioner is not entitled for bail. The offence in respect of POCSO Act has to be viewed very seriously and bail in respect of such offence may not be given. Making such submission, the learned HCGP prays to dismiss the petition.
7. Having heard the learned counsel for the respective parties and on perusal of the averments of the -6- NC: 2023:KHC-D:13088 CRL.P No. 102473 of 2023 charge sheet and statement recorded u/sec.164 of Cr.P.C. of the victim and also the statement recorded immediately before the Medical Officer while examination, there are inconsistencies between the statements by the victim. In the statement recorded u/sec.164 of Cr.P.C., she states that the petitioner has committed rape on several occasions inspite of resistance having been made. However, she has admitted that both were loving each other and she voluntarily accompanied him to go to Mumbai. The statement given before the doctor, she has narrated that after the marriage with the petitioner, he had intercourse with her. Consequently, she became pregnant. Considering the inconsistencies between the statement and also considering the age of the prosecutrix/victim, now it is relevant to refer to the provision u/sec.375 of IPC Exception 2, which reads thus:
"375. Rape.-
**** **** **** **** -7- NC: 2023:KHC-D:13088 CRL.P No. 102473 of 2023 Exception 2.- Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape."
8. On careful reading of the said provision makes it clear that the sexual intercourse committed against his wife is not below the age of 15 years is not rape. Considering the said aspect, it is appropriate to grant bail. Accordingly, I proceed to pass the following:
ORDER The petition is allowed.
The petitioner is ordered to be enlarged on bail in Crime No.95/2023 of Tekkalkota Police Station (pending in SPL.C.No.366/2023 on the file of learned Addl. District and Sessions Judge, FTSC-1 (Rape and POCSO cases) at Ballari) on executing a personal bond in a sum of Rs.1,00,000/- (Rupees One lakh only) with one surety for the likesum to the satisfaction of the Trial Court, subject to the following conditions:
a) The petitioner shall not tamper with the prosecution witnesses.-8-
NC: 2023:KHC-D:13088 CRL.P No. 102473 of 2023
b) The petitioner shall appear before the trial Court regularly without fail.
c) The petitioner shall not leave the jurisdiction of the trial Court.
In case, if the petitioner violates any of the bail conditions as stated above, the prosecution will be at liberty to seek for cancellation of bail.
Sd/-
JUDGE VB,CLK List No.: 1 Sl No.: 14